South Nyanza Sugar Company Limited v Pelesia Adhiambo
The bottom line
#Kenya's Court of Appeal dismissed South Nyanza Sugar's appeal because it raised the capacity-to-sue argument too late, confirming you cannot introduce new points on a second appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's suit before the subordinate court was competent in law, given the alleged absence of a valid grant of representation
- 2.Whether a new point of law (capacity to sue) may be raised for the first time on a second appeal
Key legal issues
#Whether the respondent's capacity to sue, raised for the first time on second appeal, could be entertained
No. The issue was never pleaded in the trial court nor raised before the first appellate court; this Court cannot entertain it on second appeal.
The Court reaffirmed the principle in Alwi Abdulrehman Saggaf v Abed Ali Algeredi that new points of law may not be raised for the first time on appeal, to prevent unfair surprise and preserve the benefit of lower courts' insights. Wachira v Ndanjeru confirms the discretion is exercised only where full justice can be done without unresolved factual inquiry. Since the capacity issue was never canvassed below, entertaining it would deprive the Court of the lower courts' assistance and unfairly surprise the respondent.
Scope of a second appeal under section 72(1) of the Civil Procedure Act
A second appeal lies only on matters of law; the Court must resist delving into matters of fact.
The Court adopted the classic statement in Kenya Breweries Ltd v Godfrey Odoyo that on second appeal the Court confines itself to matters of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse. The sole ground advanced - competence of the suit for want of a grant - was treated as a point of law, but one barred by the new-point rule.
Whether the appellant abandoned its other grounds of appeal
Yes. Since only the competence issue was addressed in the appellant's written submissions, the Court took it that all other grounds were abandoned.
Counsel for the appellant himself identified the competence of the suit as the single central issue and addressed only it in writing. The Court therefore treated the remaining grounds - breach, quantum of damages, interest, and mitigation - as abandoned, leaving the new-point question as the sole determinant of the appeal.
Legal principles established
#- A second appeal lies only on matters of law; this Court on second appeal confines itself to matters of law and will not delve into matters of fact.
- An appellate court will generally not entertain a completely new point of law raised for the first time on appeal, to avoid unfair surprise and because the lower courts never had the opportunity to consider it.
- Parties are strictly bound by their pleadings and a court cannot determine issues that were not formally pleaded.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Migori
- Migori HCCA No. 174 of 2018
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act - second appeal on matters of law only
Relief refused
#Setting aside the judgments of both courts below and dismissal of the respondent's suit for want of capacity
The capacity issue was raised for the first time on second appeal, having never been pleaded or pursued in the courts below
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The sole issue raised by the appellant fails. The appeal is accordingly dismissed with costs to the respondent.
a party cannot be permitted to raise a new point of defence for the first time on appeal, and to urge the Court to allow his appeal based on the same point, when the trial and first appellate courts had no opportunity to interrogate it and pronounce itself thereon
It is a well-settled principle of civil law that parties are strictly bound by their pleadings, and a court cannot determine issues that were not formally pleaded.
We are conscious of our limited jurisdiction when dealing with a second appeal.
Issues in the judgment
#Judgment dated 25th September 2026 despite appeal number of 2020; date may be a typographical error in the certified copy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "South Nyanza Sugar Company Limited v Pelesia Adhiambo", Case Analysis (2026). Civil Appeal No. 188 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1937/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.